These are some of the words and terms that relate to common law compensation.

At fault (or negligence / negligent)

At fault (partly at fault or negligence) is the failure to take reasonable care to avoid causing injury or loss to another person. In simple terms, it means being responsible for, or causing the accident.

Certain conditions must be met to prove fault, including that:

• there is a duty of care to be upheld
• there was a breach of the duty of care
• you suffered damages, and
• the damage was caused by the breach of duty of care.

Breach

Breach is the act of breaking a law or a responsibility.

Contributory negligence

Sometimes there may be more than one person, party or organisation who have contributed to the accident. This is called ‘contributory negligence’ or ‘partial negligence’.

Damages

Damages describes the harm to a person which impairs their normal function. It also describes the sum of money awarded in compensation.

Duty of care

Duty of care is a legal responsibility to not cause harm to others.

Impairment

An impairment is a permanent physical or psychological condition caused by your transport accident injury. Examples of a permanent impairment may include:

• multi-level spinal fusion
• reduction of the range of motion in multiple joints
• joint replacement with a poor outcome.

Liability

Liability means being legally responsible for something. For example, the at fault person, party or organisation is liable for your injuries because they caused the accident.

Pecuniary loss damages

Pecuniary loss damages means compensation for any loss of earnings, loss of earning capacity, loss of value of service or any other pecuniary, or financial loss.

Originating motion

An originating motion is a Court proceeding available to you if the TAC deems your injury as not serious.

• If you have a lawyer who participates in the Protocols
  After you provide us with information about the accident, your injury and the impact of your injury, if we deny your ‘serious injury’ application, you can meet and / or talk with us to discuss your issues and personal situation (this is called a conference). If you’re unhappy with the outcome of the conference, your lawyer can file an originating motion on your behalf. This starts the legal process to dispute the TAC’s decision.
• If you don’t have a lawyer
  After you provide us with information about the accident, your injury and the impact of your injury, if we deny your ‘serious injury’ claim, you will receive a call or letter outlining how we came to our decision. If you’re unhappy with the explanation, you should engage a Protocols lawyer who will contact us to discuss options to review the decision.

Pain and suffering

This is also known as general damages or pain and suffering compensation.

Pain and suffering is defined in the Transport Accident Act 1986. It means compensation for pain and suffering, loss of amenities of life or loss of enjoyment of life.

‘Serious injury’

‘Serious injury’ is a legal term. It is defined in the Transport Accident Act 1986 as:

• serious long-term impairment or loss of a body function; or
• permanent serious disfigurement; or
• severe long-term mental or severe long-term behavioural disturbance or disorder; or
• loss of a foetus.

A ‘serious injury’ may also be a permanent impairment of 30% or more.

Writ

A writ is a Court process to dispute the amount of common law compensation you receive from us.